LIBRARY OF CONGRESS 




014 418 838 A 



TOE GEORGIA QUESTION. 



l^rovisioiiar Urn Riddled. 



(iOVKKIsOK BULLOCK'S POSITKJ^^ AiiSU KRKD 

HY COL. GEORGE N. TOTl^R, 

OF GEORGL\. 



WASJl IXGTtiN, I'. <;. 
(JIUSOX IJUOTIIERS, PKINTKi; 

1 ftTO. 






THE 



vs. "PROVISIONAL" IDEA RIDDLED, 



A Powerful Argument against Governor Bullock's Message. 



Mr. Editor: I had the honor of being one of the counsel 
recently engaged in defending certain members of the Gen- 
eral Assembly of this State against the charge that they 
were ineligible to seats in said Assembly under the recon- 
struction acts of Congress, and as it is my pluck never to aban- 
don a client's cause until all honorable and legitimate means 
of serving him are exhausted, I desire, in behalf of those 
who have been expelled from their seats by Brevet Major 
General Terry, to present my humble views as to the polit- 
ical status of Georgia, and the powers rightfully belonging 
to the military commander of this District. I shall do this 
in good temper, without bitterness, without passion, and 
with a becoming respect and toleration for the feelings and 
opinions of others. I shall avoid all vituperation, and en- 
deavor to attribute bad motives to none who may chance to 
difter with me upon the q[uestions involved, I shall discuss 
the subject, as a question of right, and justice, and law, in 
which the expelled members and the people of Georgia have 
a deep and vital interest. The discussion may result in no 
practical good. It may not undo the wrongs and usurpa- 
tions of the past, or arrest their perpetration in the future. 
It will, at least, aid in making up a truthful history of the 
times, and serve to show that we are not oblivious or insen- 
sible to the wrongs that are piled upon our heads with such 
unsparing cruelty. An oppressed people can find some 
relief in exercising the poor privilege of remonstrance and 
protest against injustice and wrong — a privilege which every 
noble mind will freely accord. 



I respectfully deny that the present government of Geor- 
gia is a "■ provisional " government, or that General Terry 
has any lawful power, or rightful authority, to hinder or in- 
terrupt any member of the General Assembly from partici- 
pating in the proceedings of the same, after such member 
has taken the oath required by the constitution of the State, 
and has, in addition thereto, taken, subscribed, and filed in 
the office of the Secretary of State one of the oaths pre- 
scribed in the Act of Congress^ approved December 22, 1869, 
entitled, "An act to promote the reconstruction of the State 
of Georgia." 

General Terry has actually expelled Senators and Repre- 
sentatives from their places in the General Assembly, after 
tliey have been duly elected, qualified, and served for nearly 
two years, and the only pretence for a lawful exercise of such 
startling authority is found in the assertion that the present 
government of Georgia is '' provisional " only, and that all 
the reconstruction acts of Congress are still unexecuted and 
in full force in the State. If this assertion were true. Gen- 
eral Terry might claim the powers which he has exercised 
with some little show of lawful right. But such is not the 
status of Georgia. Her present government is not " pro- 
visional." The reconstruction acts, so far as they specify 
and define the powers of a district commander, are not of 
force. These laws have been fully administered and executed. 
They have accomplished the end for which they were 
enacted, and have, therefore, lost their operative force. A 
brief examination of the question will demonstrate the sound- 
ness of this position. 

It is true, that by the 6th section of the act of March 2, 
1867, it was declared, "that until the people of said rebel 
States shall be, by law, admitted to representation in the 
Congress of the United States, any civil governments that 
may exist therein shall be deemed provisional only, and in 
all respects subject to the paramount authority of the United 
States, at any time to abolish, modify, control, or supersede 
the same." It is also true, that the act of July 19, 1867, 



declared that it was the true intent and meaning ot" the act 
of March 2, 1867, and the act supplementary thereto, that 
the governments then existing in said rebel States were not 
legal governments, and that thereafter, said governments, 
if continued_, were to be continued "subject in all respects 
to the military commanders of the respective districts, and 
to the paramount authority of Congress." 

The 2d section of this act vested in the district commanders 
the power to "suspend or remove from office, or from the 
performance of official duties^, and the exercise of official 
powers^ any officer or person holding or exercising, or pro- 
fessing to hold or exercise, any civil or military office or 
duty in such district, under any power, election, appointment 
or authority derived from, or granted by, or claimed under 
any so-called State, or the government thereof," &c., " when- 
ever, in the opinion of such commander, the proper admin- 
istration of said act should require it." 

The 4th section of the same act made it the commander's 
duty " to remove from office all persons who were disloyal 
to the Government of the United States, or who used their 
official influence in any manner to hinder, delay, prevent, or 
obstruct the due and proper administration of said act, and 
the acts to which it was supplementary." 

These are the vast powers which the reconstruction acts 
vested in a district commander upon the subject of remov- 
als from office, and he had corresponding power to fill 
vacancies by detailing soldiers for the purpose, or by ap- 
pointing other persons. 

Does General Terry, or the Commander-in-Chief of the 
army, or the Secretary of War, or the President of the 
United States, or any other officer or person throughout this 
broad land, pretend that these vast powers now appertain to 
the military commander of the District of Georgia? Will 
any man, of any party, seriously insist that General Terry 
has the lawful right to remove any ^.nd every officer in this 
State, and detail a military officer or soldier to take his 
place and perform the functions of the office ? Can the mil- 



6 

itary commander, by virtue of auy known law, remove the 
Governor, the justices of the Supreme Court, the judges of 
the Superior Court, the attorney and solicitors general, 
tlie members of the General Assembly, the ordinaries, the 
clerks, the sherifi's, &c., if be should deem them "dis- 
loyal to the Government of tbe United States?" 

If the romantic opinion should be conceived by General 
Terry, that the " proper administration'" of tbe reconstruc- 
tion acts required their removal from office, could he, by the 
exercise of a lawful power, displace tbe judges of Georgia, 
and beautify and adorn tbe judiciary of the State by detail- 
ing some soldier or appointing some stranger to administer 
the law ? If be should be impressed with the conviction 
that the present members of the General Assembly were 
" using their official influence to hinder, delay, prevent or 
obstruct the due execution of the reconstruction laws/' could 
he disperse the Legislature, and march a battalion of United 
States soldiers into the Capitol, who, at his command, would 
ratify the constitutional amendment^declare the assent of the 
State to the fundamental conditions of restoration, and make 
laws to suit him and his party ? Can a military commander 
play all these fantastic tricks in Georgia ? It is no answer 
to my questions to say that General Terry will not do so, 
and that he has too much good sense and sound judgment to 
enact such ridiculous performances. It is not a question as 
to what he will do in the exercise of his good sense and 
sound judgment, but it is a question of power. Has lie these 
powers according to law ? 

If the government of Georgia is "provisional only," and 
if the reconstruction laws are still in force, and General 
Terry may " exercise within this State the powers of a com- 
mander of a military district, as provided by the act of 
March 2, 1867, and the acts sui^plementary thereto," he can 
do all that I have said, and much more that I have not enu- 
merated. Before the State was reconstructed, and before the 
reconstruction laws were executed, the powers before alluded 
to did belong to the district commander, and were freely 



exercised, even to the extent of reuioviug the Governor, tlic 
State treasurer, the comptroller general, the secretary of 
State, judges of the Superior Court, and many other officers 
of the Commonwealth. Do these powers appertain to the 
commander now ? If they do, let it he known by what order 
they were given. Let the grave question, in all its magni- 
tude and force, he looked full in the face. 

General Terry has assumed to determine that certain sen- 
ators and representatives of the Georgia Legislature are 
ineligible to the seats they occupied, and he has expelled 
them from their places. More than this ; he has followed up 
that proceeding with an official approval of and recommen- 
dation that others be seated in the places of the expelled 
members, without any sort of inquiry into the eligibility of 
the substitutes, so far as the public are informed. One of 
these substitutes is the postmaster of Atlanta, Georgia, and 
occupies a place in the Senate, and performs the functions 
and duties of a senator, in direct violation of that provision 
of the constitution of Georgia which declares that " no person 
holding a military commission, or other appointment or 
office, having any emolument or compensation annexed 
thereto, under this State or the United States, or either of 
them, except justices of the peace and officers of the militia," 
&c., "shall have a seat in either house." Another one of 
these substitutes, who occupies the place of an expelled 
member of the House, is the clerk of the said postmaster at 
Atlanta. 

Let it be remembered in this connection, that Congress has 
approved the constitution of Georgia. 

Now, if General Terry can lawfully do this, then, indeed, 
the government of this State is exceedingly provisional, and 
the people have gone through an immense farce in the mat- 
ter of registering voters, electing delegates, holding conven- 
tions, framing and ratifying a constitution, electing officers, 
and inaugurating a State government. 

I repeat, with emphasis, that the present government of 
Georgia is not provisional, and the fact that General Terry, 



8 

and Governor Bullock, and President Conley, and Speaker 
McWhorter, call it so, does not change the fact. Nay, more : 
if every officer in the State should, as a matter of fancy or 
otherwise, prefix the word provisional to his official designa- 
tion, it would not change the nature or character of the gov- 
ernment. In former times, governments were invested wath 
something like sacredness^ and could not be made or unmade, 
altered, or modified by a process so cheap,|or'an arrangement 
so convenient. 

I put the case of my clients and the interests of our people 
upon the law, which cannot be rightfully repealed or changed 
by prefixes or military orders. The reconstruction acts 
placed Georgia under the absolute control of a military gov- 
ernment, and required certain things to be done before 
swords and bayonets should cease to flash and glisten in the 
faces of her people ; and bitter as was the cup to many 
of her citizens, she drank its contents of wormwood and gall, 
until even the dregs were all taken. 

The law declared that the government should be provisional 
only, and subject to the authority of the military commander 
and Congress, "until the people should be, hylaiu^ admitted 
to representation in the Congress of the United States." 

The good old State, with burning feet, walked through 
the fiery ordeal, and Congress took her by the hand and said, 
thus far it is enough, and you shall be delivered ; and on the 
25th of June, 1868, an act was passed entitled ''An act to 
admit the States of North Carolina, South Carolina, Louisi- 
ana, Georgia, Alabama, and Florida, to representation in 
Congress." 

The preamble to this act declared that Georgia had, in 
pursuance of tlie provisions of the reconstruction acts, framed 
a constitution of State government that was Republican, and 
the first section of the act solemnly declared that when her 
Legislature should duly ratify article 14th of the Constitu- 
tion of the United States, and declare the assent of the 
State to certain fundamental conditions specified in the act, 
the State should be admitted to representation. 



9 

Poor, friendless, humiliated Georgia again pressed the 
cup of augmented bitterness to her lips, and on the 21st of 
July, 1868, complied with the very letter, with every re- 
quirement of the act, upon the doing of which the first 
section of the act took effect, and she was, hy lata, admitted to 
representation in Congress as a State in the Union. The 
act declared, in express terms, that the first section should 
taJce effect as to Georgia when she ratified article 14, and 
assented to the conditions imposed. 

From and after that time the prefix "provisional" was 
dropped hy Congress and by every officer of the State, and 
of the United States, and was never resumed until it became 
necessary to subserve other ends besides reconstruction. 

The laio by which Georgia was admitted stands this day 
upon the statute-book, unrepealed and unaltered. Though 
lier Senators and Eepresentatives have no place in the halls 
of Congress, yet they are, by solemn, unrepealed law, most 
unquestionably entitled to their seats. Though the State 
has neither voice nor vote in the national Legislature, she 
has nevertheless been, hy law, admitted to representation in 
Congress as a State in the Union. Though the Secretary of 
the Senate and the Clerk of the House will not place the 
names of her duly elected Senators and Eepresentatives upon 
the roll of members, yet such refusal does not repeal or 
change the law. The persistent refusal of Congress to allow 
the Senators and Representatives from Georgia to be sworn, 
and to take their places as members, does not in any manner 
abrogate the law by which she was admitted to representa- 
tion. The stolid indifterence with which Congress has, up 
to this time, disregarded its solemn pledge of admission and 
failed to mete out to us the benefits of the law, does not wipe 
out one line or letter of its provisions from the statute-book. 
There it stands, with its unmistakable words and its solemn 
sanctions, declaring that Georgia shall be admitted to repre- 
sentation in Congress as a State in the Union. 

The legal proposition that this State has been by law ad- 
mitted to representation in Congress is abundantly and un- 



10 

answerably shown by the fact that no additional legislation 
is necessary to effect that object. Senators and Kepresenta- 
tives from Georgia could now be qualified and. take their 
seats with no more ceremony than would be required in the 
case of Senators and Representatives from Massachusetts, 
Ohio, or any other State of the Union, To simply adminis- 
ter the oath of office is all that is necessary in either case, 
the law admitting Georgia having been enacted and com- 
plied with long ago. 

Thus, I think, it is conclusively shown, that from and 
after the 21st of July, 1868, the government of Georgia 
ceased to be provisional, and assumed the form of a perma- 
nent government ; that the reconstruction acts were fully ad- 
ministered and executed, and that the powers of the military 
commander, under said acts, ceased to exist in the State. 

I come now to a very brief discussion of the objects and 
purposes of the act of the 22d of December, 1869, entitled 
" An act to promote the reconstruction of the State of Geor- 
gia," and the circumstances that led to its passage. By this 
act, Congress intended to correct the wrong done to the col- 
ored members of the General Assembly, by their expulsion 
from the seats to which they were elected, and if such ex- 
pulsion had not occurred, our Senators and Representatives 
long ago would have been in their places. 

This act does not revive the reconstruction laws, nor re- 
voke the registration of voters, nor withdraw the approval 
of the constitution of the State by Congress. It does not, 
in express terms, or by reasonable implication, set aside any- 
thing that Georgia had done, except the act expelling tlie 
colored members from the Legislature, and seating others in 
their stead. The act nowhere declares or hints at a revival 
of military authority in the State, but, as I shall presently 
show, the provisions of the bill clearly indicate the contrary. 

My humble view of this act saves Congress from the impu- 
tation of riding over the Constitution of the United States, 
and of disregarding the vested rights of persons elected to 
the Legislature in accordance witli law. The first section of 



11 

the l-4th article of the Coustitutioa provides that no State 
shall "deny to any person within its jurisdiction the equal 
protection of its laws," and, in the judgment of Congress, 
this provision of the Constitution was violated by the expul- 
sion of the colored members from the places to which they 
had been elected, and to which tliey were ineligible, in the 
General Assembly of the State. 

The 5th section of article 14 declares that Congress shall 
have power to enforce, by appropriate legislation, the 
provisions of said article, and in the exercise of this powej' 
they deemed it a^tpropriate legislation to pass the act of De- 
cember 22, 1869, in order to restore the colored men to their 
seats and thus secure to them the equal protection of the laws 
of the State, which the Legislature had denied them when 
they were expelled. Hence the act required the Governor 
(not the *' Provisional " Governor) to summon the persons 
elected to the General Assembly, as appears by the procla- 
mation of General Meade to appear at Atlanta on a day stated , 
and those persons, and those alone, were to constitute the 
General Assembly, if they could take the oaths prescribed in 
the act. If they swore falsely the act provided the remedy, 
and designated the forum in which the remedy was to be ob- 
tained. The idea that all the offices in the State were to be 
vacated, and new elections had, is not so much as hinted at 
in the act. No one thought of Gen. Terry passing upon tin; 
eligibility of members, and filling the places of those expelled 
by him with others not summoned or designated in the act. 
So far from creating a military district in Georgia, and 
placing a commander over it, with the powers specified in 
the act of March 2, 18G7, and its supplements, the 7th sec- 
tion of the act which I am discussing provides, that upon 
the application of the Governor of Georgia — not Provisional 
Governor — the President of the United States shall employ 
such military or naval forces of the United States as may be 
necessary to enforce and execute the i)rovisions of that act- 
not the reconstruction acts that had already been enforced 
and executed, and become inoperative. 



12 



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014 418 838 t 



This is all tliat the military authorities were to liave to do 
with the act, and yet the '^ Provisional" Governor and 
General Terry have taken charge of the Legislature, and 
ordered when it should meet, when it should take rccesR, 
who should be expelled, and who should fill their places. 
And when, by these means, a majority is obtained that can 
be absolutely controlled, they are told to call themselves a 
l)rovisional legislature, and to declare that it is the only 
legal one that has existed in the State since the war ended, 
and to make haste and ratify the 14th amendment, declare 
again the assent of Georgia to the fundamental conditions 
of the act of June 25, 1868, ratify the 15th amendment, 
and then take a recesi of twelve days, so as to give time for 
the manipulators of this illegally organized assembly to hie 
to Washington and })e8et Congress to approve and ratify 
what they have done, to the utter ruin of a State which, 
if maltreated and harassed mucli linger, will not be worth 
admission into any Union. 

In behalf of my wronged clients^ and in l>ehalf of this 
State, every inch of wh-isc soil I love, and in behalf of lier 
people, whose welfare Jii;il happiness I desirt; above every 
earthly good, I appeal lo Congress, and to the President, to 
give us a speedy deliverance from the troubles that liave so 
long shut the door of ))i'o.sp;iity against us. 

OEOR(iK X. LKSTKK. 



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